Parents who wish to leave their house to their kids can employ a variety of tactics to ensure their wishes are honored. Working with an estate planning attorney to create a will and a living trust, and making sure all the right wording is included in the deed is often necessary to ensure all bases are covered.

Wills

A will is a legal document that is set-up and signed by the testator to transfer property and money upon death. A will can be used to transfer anything the testator owns to anyone (or anything) he or she wants. Upon the death of the testator, a court-supervised process called probate reviews the will and makes sure the property is distributed according to the instructions.

However, people should not depend on wills alone to protect their assets. Before any assets are transferred to the beneficiaries, the estate must first settle any remaining debts owed by the testator. Therefore, if the testator had a significant holdover debt (like student loans or a mortgage), the estate must pay off the debt through monies or, if necessary, by selling assets (like the family home).

Living Trusts

Living trusts allow the testator to maintain control of the assets while still alive. The trust is set-up during life and given control of property and monies by the testator. The testator can manage the trust until she dies whereupon a trustee is named to run the trust in accordance with the instructions. Trusts are beneficial because they avoid probate, so assets are transferred more quickly to beneficiaries.

Amending the Deed

Parents can also amend their deed to include “transfer on death” or “joint tenant with right of survivorship” language which automatically transfers the testator’s interest in the home to the named beneficiaries upon death (even faster than a trust). With a Transfer on Death deed, the owner is free to sell the home, borrow against it, or even get a reverse mortgage. It can still result in disputes among beneficiaries, however, if they do not agree on what to do with the house after the parent dies. When the words “Joint Tenant with Right of Survivorship” are included in the deed, the parent and the other person (or people) become co-owners of the home. The home will be subject to the debts of the co-owner and the co-owner will have control over refinancing decisions.